Chattisgarh High Court
Deepak Vaishnav vs State Of Chhattisgarh on 9 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:16334-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 119 of 2024
Deepak Vaishnav S/o Mahendra Vaishnav Aged About 24 Years R/o
Vill- Amarpur (Bharra), Ps- Pandariya,, District : Kawardha (Kabirdham),
Chhattisgarh
... Appellant
versus
State of Chhattisgarh Through PS- Lalpur, District : Mungeli,
Chhattisgarh
... Respondent
For Appellant : Mr. Syed Majid Ali, Advocate
For Respondent/State : Mr. Nitansh Jaiswal, Dy. Govt. Advocate
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
JUDGMENT ON BOARD
Per Ramesh Sinha, C.J.
09.04.2026
1. Today, though the matter is listed for hearing on I.A.No.01/2024,
which is an application for suspension of sentence and grant of
ROHIT bail to the appellant, however, considering the fact that the
KUMAR
CHANDRA
Digitally signed
by ROHIT
KUMAR
appellant is in jail since 17.10.2022 and with the consent of
CHANDRA
learned counsel for the parties, the appeal is heard finally.
2
2. This criminal appeal under Section 374(2) of the CrPC is directed
against the judgment of conviction and order of sentence dated
16.10.2023 passed by the Special Judge (F.T.S.C.) POCSO Act,
Mungeli, District- Mungeli (C.G.) in Special Criminal Case No.
76/2022, whereby the learned trial Court has convicted and
sentenced sentenced the appellant with a direction to run all the
sentences concurrently in the following manner :
CONVICTION SENTENCE
U/s 363 of IPC Rigorous imprisonment for 5 years and
fine of Rs. 500/- and in defaults of
payment of fine amount, additional RI
for 02 months
U/s 366 of IPC Rigorous imprisonment for 5 years and
fine of Rs. 500/- and in defaults of
payment of fine amount, additional RI
for 02 months
U/s 6 of the POCSO Rigorous imprisonment for 20 years
Act and fine of Rs. 1,000/- and in defaults of
payment of fine amount, additional RI
for 02 months
3. Case of the prosecution, if brief, is that on 14.09.2022, the victim’s
father/complainant (PW-01) appeared at the Lalpur police station
and lodged a report stating that on 13.09.2022 at around 9:30 am,
his daughter/victim left on her bicycle to go to school and did not
return home till 5:00 pm. Then, when he inquired about the victim
from his daughter’s/victim’s friend, she told him that the victim had
not come to school and had told him that she was at her maternal
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uncle’s village. He inquired about his daughter/victim by calling
the neighbours, relatives and her maternal uncle’s village, but the
victim was nowhere to be found. He suspects that some unknown
person has lured his daughter/victim away. On the report of the
victim’s father/complainant, a First Information Report (FIR)
Ex.P-01 was registered against the unknown accused under
Section 363 of the Indian Penal Code at Lalpur Police Station and
taken up for investigation.
4. During the investigation, the victim’s statement was recorded in
Ex.P.-15 under Section 164 Cr.P.C. in the Judicial Magistrate
Court. The spot map was prepared Ex.P.-04. The victim was
medically examined by Dr. Priyadarshini (A.S.-05). After the
medical examination of the victim by the doctor, the medical report
Ex.P.-16 was prepared. The statements of the victim and the
witnesses were recorded as per their instructions. The original
school admission register was seized from Headmaster Ravindra
Kumar Patre (A.S.-02) and seizure memo Ex.P.-11 was prepared.
Sub-Inspector Virendra Singh Kshatriya (A.S.-07) seized two
vaginal slides of the victim and the underwear of the accused in a
sealed envelope and prepared seizure memo Ex.P.-21 and 22.
The genitals of the accused were examined by Doctor Manilal
Bhaskar (ASI-06) and genital examination report Ex.P.-17 was
prepared. The articles seized in the case were sent to Forensic
Science Laboratory, Bilaspur for chemical examination, from
where FSL report Ex.P.-29 was received after examination. The
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accused was arrested in the case and arrest panchnama Ex.P.-19
was prepared. On the basis of the victim’s statement, offences
under sections 366, 376 of IPC and sections 4, 6 of the POCSO
Act were added to the case. After necessary investigation, a
charge sheet was presented against the accused for trial before
the Court of Special Judge (F.T.S.C.) POCSO Act, Mungeli,
District- Mungeli (C.G.) under Sections 363, 366, 376 of IPC and
Sections 4, 6 of the Protection of Children from Sexual Offences
Act against the accused on the basis of the case and attached
documents.
5. After the charges were framed under Sections 363, 366, 376 (2)
(N) of the Indian Penal Code and Section 6 of the Protection of
Children from Sexual Offences Act, 2012 and were read out and
explained to the accused, the accused denied the charges and
sought trial.
6. On behalf of the prosecution, statements of the victim’s father
PW-01, Head teacher Ravindra Kumar Patre PW–02, victim
PW-03, victim’s mother PW-04, Dr. Priyadarshini PW-05,
Dr.Manilal Bhaskar PW-06, Sub Inspector Virendra Singh
Kshatriya PW-07, Head Constable Gulab Singh Rajput PW-08,
Deputy Superintendent of Police Sadhna Singh PW-09, and Head
Constable Arun Netam PW-10 have been recorded in the case
and 29 documents have been presented and exhibited.
7. On the basis of the evidence presented by the prosecution in the
case, a statement of charge was prepared under Section 313(1-b)
5
of the CrPC and on examination of the accused, the accused
denied the facts of the prosecution evidence and declared himself
innocent and did not want to give evidence in his defence.
8. After appreciation of evidence available on record, the learned
trial Court has convicted and sentenced the accused/appellant as
mentioned in para 2 of this judgment. Hence, this appeal.
9. Learned counsel for the appellant vehemently argued that the
impugned judgment passed by the learned trial Court is wholly
contrary to the settled principles of law, as well as the facts and
circumstances of the present case, and therefore deserves to be
set aside. He submitted that the learned trial Court has failed to
properly appreciate the evidence available on record in its correct
perspective. Even if the entire prosecution case is taken at its face
value and accepted in its entirety, no offence under Sections 363
and 366 of the IPC, nor under Section 6 of the POCSO Act, is
made out against the present appellant. Learned counsel further
contended that the conduct and statements of the victim, as
reflected in her own deposition, clearly demolish the prosecution
story. The victim herself has categorically stated that she was in
regular telephonic contact with the appellant through an unknown
number. It is further admitted by her that she had voluntarily
accompanied the appellant and travelled with him by bus up to
Mungeli, and thereafter proceeded along with him to Raipur. It
was also pointed out that from Raipur, both the appellant and the
victim travelled together to Hyderabad, where they stayed for a
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day. Thereafter, they again travelled together from Hyderabad to
Vijayawada, and subsequently to Agrapalli, where they resided
together in a room for a period of about one month. Learned
counsel emphasized that during the said period, the victim
remained in the company of the appellant without any resistance
or complaint and voluntarily established physical relations with
him. This continuous and voluntary companionship, as borne out
from the prosecutrix’s own version, clearly indicates absence of
force, inducement, or coercion on the part of the appellant.
10. Per contra, learned counsel for the State strongly opposed the
submissions advanced on behalf of the appellant and supported
the impugned judgment passed by the learned trial Court. He
contended that the learned trial Court has rightly appreciated the
oral as well as documentary evidence available on record and has
arrived at a well-reasoned and legally sustainable finding, which
does not call for any interference by this Hon’ble Court. Learned
State counsel submitted that the victim was a minor at the time of
the incident, and therefore, her alleged consent, if any, is wholly
immaterial in the eyes of law. It was further argued that once the
age of the victim is established to be below 18 years, the question
of consent loses all significance, particularly in view of the
stringent provisions of the POCSO Act. He further contended that
the evidence on record clearly establishes that the appellant had
taken the victim away from the lawful guardianship of her parents,
thereby attracting the offence under Section 363 of the IPC. The
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subsequent acts of taking her to different places including
Mungeli, Raipur, Hyderabad, Vijayawada, and Agrapalli, and
keeping her in his company for a prolonged period, clearly
demonstrate the element of inducement and enticement, thereby
constituting an offence under Section 366 of the IPC. Learned
counsel for the State further submitted that the victim, in her
statement, has categorically stated that she had established
physical relations with the appellant during the said period. In view
of her minority, such physical relationship squarely falls within the
ambit of penetrative sexual assault as defined under the POCSO
Act, and the aggravated nature of the offence has been rightly
considered by the learned trial Court while convicting the
appellant under Section 6 of the POCSO Act.
11. We have heard learned counsel for the parties, considered their
rival submissions made hereinabove and also went through the
records with utmost circumspection.
12. The first question for consideration would be, whether the trial
Court is justified in convicting the appellant for offence under
Section 363 of the IPC ?
13. The appellant has been convicted for offence under Section 363
of the IPC, which is punishable for kidnapping. Kidnapping has
been defined under Section 359 of the IPC. According to Section
359 of the IPC, kidnapping is of two kinds: kidnapping from India
and kidnapping from lawful guardianship. Section 361 of the IPC
8
defines kidnapping from lawful guardianship which states as
under:-
“361. Kidnapping from lawful guardianship.-Whoever
takes or entices any minor under sixteen years of age if a
male, or under eighteen years of age if a female, or any
person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind,
without the consent of such guardian, is said to kidnap
such minor or person from lawful guardianship.”
14. The object of Section 359 of the IPC is at least as much to protect
children of tender age from being abducted or seduced for
improper purposes, as for the the protection of the rights of
parents and guardians having the lawful charge or custody of
minors or insane persons. Section 361 has four ingredients:-
(1) Taking or enticing away a minor or a person of
unsound mind.
(2) Such minor must be under sixteen years of age, if a
male, or under eighteen years or age, if a female.
(3) The taking or enticing must be out of the keeping of
the lawful guardian of such minor or person of unsound
mind.
(4) Such taking or enticing must be without the consent of
such guardian.
So far as kidnapping a minor girl from lawful guardianship is
concerned, the ingredients are : (i) that the girl was under 18
years of age; (ii) such minor was in the keeping of a lawful
guardian, and (iii) the accused took or induced such person to
leave out of such keeping and such taking was done without the
consent of the lawful guardian.
9
15. The Supreme Court while considering the object of Section 361 of
the IPC in the matter of S.Varadarajan v. State of Madras 1, took
the view that if the prosecution establishes that though
immediately prior to the minor leaving the father’s protection no
active part was played by the accused, he had at some earlier
stage solicited or persuaded the minor to do so and held that if
evidence to establish one of those things is lacking, it would not
be legitimate to infer that the accused is guilty of taking the minor
out of the keeping of the lawful guardian and held as under:-
“It would, however, be sufficient if the prosecution
establishes that though immediately prior to the minor
leaving the father’s protection no active part was played
by the accused, he had at some earlier stage solicited or
persuaded the minor to do so. If evidence to establish
one of those things is lacking it would not be legitimate to
infer that the accused is guilty of taking the minor out of
the keeping of the lawful guardian merely because after
she has actually left her guardian’s house or a house
where her guardian had kept her, joined the accused and
the accused helped her in her design not to return to her
guardian’s house by taking her along with him from place
to place. No doubt, the part played by the accused could
be regarded as facilitating the fulfilment of the intention of
the girl. But that part falls short of an inducement to the
minor to slip out of the keeping of her lawful guardian and
is, therefore, not tantamount to “taking”.”
16. Reverting to the facts of the present case in light of ingredients of
offence under Section 361 of the IPC which is punishable under
Section 363 of the IPC & as well as principles of law laid down by
the Supreme Court in the matter of S.Varadarajan (supra), it is
evident that the victim was in regular telephonic contact with the
appellant through an unknown number and she had voluntarily
1 AIR 1965 SC 942
10
accompanied the appellant and travelled with him by bus up to
Mungeli, and thereafter proceeded along with him to Raipur. It
was also pointed out that from Raipur, both the appellant and the
victim travelled together to Hyderabad, where they stayed for a
day. Thereafter, they again travelled together from Hyderabad to
Vijayawada, and subsequently to Agrapalli, where they resided
together in a room for a period of about one month. As such,
there is no inducement to the victim by the appellant to leave the
lawful guardianship. Therefore, in the considered opinion of this
Court, the act/omission of the appellant, if any, would not
tantamount to “taking” within the meaning of Section 361 of the
IPC in light of judgment of the Supreme Court in S.Varadarajan
(supra). Similarly, there is no evidence of enticing the minor victim
by the appellant. As such, the trial Court is absolutely unjustified in
convicting the appellant for offence under Section 363 of the IPC.
17. The next question for consideration would be, whether the trial
Court is justified in convicting the appellant for offence under
Section 366 of the IPC ?
18. Dr. Priyadarshini (PW-5) has stated that on medical examination
of the victim, she found no injury on the external and internal parts
of her body. The victim’s hymen was already torn and filled.
According to her, no definite opinion has been given regarding the
sexual intercourse with the victim at that time. On examination of
the victim’s underwear, no stains were found on it, which were
marked and sealed and two vaginal slides were prepared by her,
11
sealed and handed over to the lady constable for chemical
examination. The medical report given by her is Ex.P-16, which is
signed by her. Further, the FSL report (Ex.P-29) is also found to
be negative. As such, there is no corroborative evidence placed
by the prosecution to prove the guilt of the accused for the offence
punishable under Section 366 of the IPC.
19. By perusal of the evidence of the victim girl, it appears that victim
girl was simply accompanied the accused without being enticed or
influenced. Mere accompanying a person without being induced
does not constitute an offence under Section 366 of the IPC.
Though, the learned State counsel vehemently contended that
age of the victim girl has proved by the prosecution that she is
minor as on the date of incident, nevertheless, in order to convict
the accused for the offence under Section 366 of the IPC, other
two essential ingredients i.e. the victim girl must be induced by the
accused and she must be induced by the accused person to go
from a place or to do any act with an intent that such girl may be
knowing that it is likely that she will be forced or seduced to illicit
intercourse by another person. As such, the prosecution has failed
to prove the ingredients of offence under Section 366 of the IPC.
20. So far as the age of victim is concerned, the documentary
evidence including oral evidence regarding the date of birth of the
victim (PW-3) being 10/11/2006, copy of Dakhil Kharij Register
(Ex.P-12) and Aadhar Card (Ex.P26C) are present on record in an
irrefutable manner, which there is no reason to disbelieve. Hence,
12
the age of the victim (PW-3) is proved to be around 15 years 10
months and 03 days and if consent was given for sexual
intercourse on the date of incident, it does not amount to an
offence under the POCSO Act.
21. In the matter of Jaya Mala v. Home Secretary, Govt. of Jammu
& Kashmir and others2, the Supreme Court has held that a
judicial notice can be taken that the margin of error in age
ascertained by Radiological examination is two years on either
side. Relevant para of the said judgment states as under:-
“9. Detenu was arrested and detained on Oct. 18,
1981. The report by the expert is dated May 3, 1982,
that is nearly seven months after the date of
detention. Growing in age day by day is an
involuntary process and the anatomical changes in
the structure of the body continuously occur. Even on
normal calculation, if seven months are deducted
from the approximate age opined by the expert, in
Oct., 1981 detenu was around 17 years of age,
consequently the statement made in the petition
turns out to be wholly true. However, it is notorious
and one can take judicial notice that the margin of
error in age ascertained by radiological examination
is two years on either side. Undoubtedly, therefore,
the detenu was a young school going boy. It equally
appears that there was some upheavel in the
educational institutions. This young school going boy
may be enthusiastic about the students’ rights and on
two different dates he marginally crossed the bounds
of law. It passes comprehension to believe that he2 AIR 1982 SC 1297
13can be visited with drastic measure of preventive
detention. One cannot treat young people, may be
immature, may be even slightly misdirected, may be
a little more enthusiastic, with a sledge hammer. In
our opinion, in the facts and circumstances of this
case the detention order was wholly unwarranted
and deserved to be quashed.”
22. In Alamelu & Another (supra), where the facts and
circumstances were similar to that of this case, the Supreme
Court observed as under:
“51. This Court in Rameshwar v. State of Rajasthan
{AIR 1952 SC 54} declared that corroboration is not
the sine qua non for a conviction in a rape case. In the
aforesaid case, Vivian Bose, J. speaking for the Court
observed as follows:-
“The rule, which according to the cases has
hardened into one of law, is not that corroboration
is essential before there can be a conviction but
that the necessity of corroboration, as a matter of
prudence, except where the circumstances make it
safe to dispense with it, must be present to the
mind of the judge, … The only rule of law is that this
rule of prudence must be present to the mind of the
judge or the jury as the case may be and be
understood and appreciated by him or them. There
is no rule of practice that there must, in every case,
be corroboration before a conviction can be allowed
to stand.”
52. The aforesaid proposition of law has been
reiterated by this Court in numerous judgments
subsequently. These observations leave no manner of
doubt that a conviction can be recorded on the sole,
uncorroborated testimony of a victim provided it does
not suffer from any basic infirmities or improbabilities
which render it unworthy of credence.
xxx xxx xxx
14
54. Even PW5, Thiru Thirunavukarasu stated that
Sekar (A1) had brought the girl with him to his house
and told him that he had married her. They had come
to see Trichy and requested a house to stay. This
witness categorically stated that he thought that they
were newly married couple. He had made them stay in
Door No. 86 of the Police Colony, which was under his
responsibility. On 10th August, 1993, the police
inspector, who arrived there at 10.00 p.m. told this
witness that Sekar (A1) had married the girl by
threatening her and “spoiled her”. The girl, according to
the prosecution, was recovered from the aforesaid
premises. Therefore, for six days, this girl was staying
with Sekar (A1). She did not raise any protest. She did
not even complain to this witness or any other
residents in the locality. Her behavior of not
complaining to anybody at any of the stages after being
allegedly abducted would be wholly unnatural.
55. Earlier also, she had many opportunities to
complain or to run away, but she made no such effort.
It is noteworthy that she made no protest on seeing
some known persons near the car, after her alleged
abduction. She did not make any complaint at the
residence of Selvi, sister of Sekar (A1) at Pudupatti.
Again, there was no complaint on seeing her relatives
allegedly assembled at the temple. Her relatives
apparently took no steps at the time when mangalsutra
was forcibly tied around her neck by Sekar (A1). No
one sent for police help even though a car was
available. She made no complaint when she was taken
to the house of PW5, Thiru Thirunavukarasu and
stayed at his place. Again, there was no protest when
Sekar (A1) took her to the police station on 5th day of
the alleged abduction and told at the Tiruchi Police
Station that they had already been married. The above
behaviour would not be natural for a girl who had been
compelled to marry and subjected to illicit sexual
intercourse.
56. In view of the aforesaid, we are of the considered
opinion that the prosecution has failed to prove beyond
reasonable doubt any of the offences with which the
appellants had been charged. It appears that the entire
15
prosecution story has been concocted for reasons best
known to the prosecution.”
23. In the matter of Tilku Alias Tilak Singh V. The State Of
Uttarakhand, reported in 2025 INSC 226, the Supreme Court has
held that he victim, who is between 16 to 18 years of age is very
much in the age of understanding as to what was right and wrong
for her. Relevant para of the said judgment states as under:-
“16. Even if the finding of the learned Single Judge of
the High Court that the prosecutrix was between 16 to
18 years of age is to be accepted, in our view, the
offence under Sections 363 and 366 IPC would still not
be made out.
17. This Court in the case of S. Vardarajan v. State of
Madras, reported in 1964 SCC OnLine SC 36 had an
occasion to consider almost similar facts that arise for
consideration in the present case. This Court has
observed thus:
“7. …..It will thus be seen that taking or enticiting
away a minor out of the keeping of a lawful guardian
is an essential ingredient of the offence of
kidnapping. Here, we are not concerned with
enticement but what we have to find out is whether
the part played by the appellant amounts to “taking”
out of the keeping of the lawful guardian of Savitri.
We have no doubt that though Savitri had been left
by S. Natarajan at the house of his relative K.
Nataranjan she still continued to be in the lawful
keeping of the former but then the question remains
as to what is it which the appellant did that
constitutes in law “taking”. There is not a word in the
deposition of Savitri from which an inference could
16
be drawn that she left the house of K. Natarajan at
the instance or even a suggestion of the appellant. In
fact she candidly admits that on the morning of
October 1st, she herself telephoned to the appellant
to meet her in his car at a certain place, went up to
that place and finding him waiting in the car got into
that car of her own accord. No doubt, she says that
she did not tell the appellant where to go and that it
was the appellant himself who drove the car to
Guindy and then to Mylapore and other places.
Further, Savitri has stated that she had decided to
marry the appellant. There is no suggestion that the
appellant took her to the Sub-Registrar’s office and
got the agreement of marriage registered there
(thinking that this was sufficient in law to make them
man and wife) by force or blandishments or anything
like that. On the other hand the evidence of the girl
leaves no doubt that the insistence of marriage came
from her side. The appellant, by complying with her
wishes can by no stretch of imagination be said to
have taken her out of the keeping of her lawful
guardian. After the registration of the agreement both
the appellant and Savitri lived as man and wife and
visited different places. There is no suggestion in
Savitri’s evidence, who, it may be mentioned had
attained the age of discretion and was on the verge
of attaining majority that she was made by the
appellant to accompany him by administering any
threat to her or by any blandishments. The fact of her
accompanying the appellant all along is quite
consistent with Savitri’s own desire to be the wife of
the appellant in which the desire of accompanying
him wherever he went was course implicit. In these
circumstances we find nothing from which an
17
inference could be drawn that the appellant had
been guilty of taking away Savitri out of the keeping
of her father. She willingly accompanied him and the
law did not cast upon him the duty of taking her back
to her father’s house or even of telling her not to
accompany him. She was not a child of tender years
who was unable to think for herself but, as already
stated, was on the verge of attaining majority and
was capable of knowing what was good and what
was bad for her…….”
18. It is thus clear that the prosecutrix, who according to
the learned Single Judge of the High Court, was between
16 to 18 years of age was very much in the age of
understanding as to what was right and wrong for her.
19. From the evidence of the prosecutrix itself, it will be
clear that she had voluntarily gone along with the
appellant herein, travelled to various places and also
resided as husband and wife at Dehradun.”
24. The victim (PW-3) in her statement recorded under Section 164
CrPC has deposed that her brother gave his mobile phone her to
use. At that time, she received a call on her mobile number from
an unknown number. The caller introduced himself as xxx (the
accused. After a brief conversation, she disconnected the call.
However, the accused continued to call her repeatedly. Initially,
she did not answer his calls, but later she started talking to him.
The accused told her that he liked her, and she also said that she
liked him. On 12.09.2022, the accused called her, and during the
conversation, she told him that they should elope and get married.
He agreed to marry her. The next day, without informing her
18
family, she went with the accused to Raipur for marriage. From
Raipur, they boarded a bus and went to Hyderabad, and from
there, via Vijayawada, they reached Agrapalli. There, the accused
kept her in a rented house. They lived together there as husband
and wife, and they also had physical relations. She further
admitted that she went with accused of her own free will.
However, the victim (PW-3), in her Court statement has deposed
that she was in regular telephonic contact with the appellant
through an unknown number. She further stated while she was
going to school, the accused stopped her bicyle and took her by
bus up to Mungeli, and she thereafter proceeded along with him
to Raipur and from Raipur, both the appellant and the victim
travelled together to Hyderabad, where they stayed for a day.
Thereafter, they again travelled together from Hyderabad to
Vijayawada, and subsequently to Agrapalli, where they resided
together in a room for a period of about one month and
established physical relations during the said period.
25. The scrutiny of entire evidence goes to show that there is no
evidence on record that at any point of time the appellant solicited
or persuaded the victim to leave her home forcefully. On the other
hand, it is clearly established that the victim was in regular
telephonic contact with the appellant through an unknown
number. She had voluntarily accompanied the appellant and
travelled with him by bus up to Mungeli, and thereafter proceeded
along with him to Raipur and from Raipur, both the appellant and
19
the victim travelled together to Hyderabad, where they stayed for
a day. Thereafter, they again travelled together from Hyderabad to
Vijayawada, and subsequently to Agrapalli, where they resided
together in a room for a period of about one month and during the
said period, the victim remained in the company of the appellant
without any resistance or complaint and voluntarily established
physical relations with him. This continuous and voluntary
companionship, as borne out from the victim’s own version,
clearly indicates absence of force, inducement, or coercion on the
part of the appellant.
26. Applying the principle of law laid down by the Supreme Court in
the above-stated judgment (supra) to the facts of the present case
and considering the opinion of Medical Officer (PW-5) and her
report Ex.P-16 and FSL report Ex.P-29 coupled with the testimony
of the victim herself creates a serious lacuna in the prosecution
story, the benefit of which should be granted to the appellant. On
the basis of material available on record and evidence collected
by the prosecution, it cannot be held that the prosecution has
been able to bring home the offences under Sections 363, 366 of
the IPC and Sections 6 of the POCSO Act beyond reasonable
doubt as evidence brought on record is not sufficient to bring
home the offences against the appellant / accused herein.
27. As a fallout and consequence of the aforesaid legal analysis, the
criminal appeal is allowed and the impugned judgment of
conviction and order of sentence dated 16.10.2023 passed by the
20
Special Judge (F.T.S.C.) POCSO Act, Mungeli, District- Mungeli
(C.G.) in Special Criminal Case No. 76/2022 is hereby set aside.
The accused / appellant is acquitted of the said charges levelled
against him. He is in jail since 17.10.2022. He shall be set at
liberty forthwith if no longer required in any other criminal case.
28. Keeping in view the provisions of Section 437-A of the Code of
Criminal Procedure, 1973 (Now Section 481 of the Bhartiya
Nagarik Suraksha Sanhita, 2023), the appellant is directed
forthwith furnish a personal bond in terms of Form No.45
prescribed in the Code of Criminal Proceure of sum of Rs.25,000/-
with two reliable sureties in the like amount before the Court
concerend which shall be effective for a period of six months
along with an undertaking that in the event of filing of Special
Leave Petition against the instant judgment or for grant of leave,
the aforesaid appellant on receipt of notice thereof shall appear
before the Hon’ble Supreme Court.
29. Let a copy of this judgment and the original record be transmitted
to the trial court concerned forthwith for necessary information
and compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Chandra